Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This action is responsive to Applicant’s remarks filed 11/22/2024 and amendment/remarks filed 12/05/2024.
Claims 1-17 and 21-23 are currently pending.
Claim Interpretation
Interpretation of “recycled”, “net global warming potential”, and “formed from” limitations
Independent claims 1 and 3 recite the limitations that the difluoromethane and pentafluoroethane components are “recycled” (“72-74 wt% recycled difluoromethane; 7-8 wt% recycled pentafluoroethane;”) and claim 4 (which is dependent on claim 1) recites the limitation “wherein the refrigerant composition has a net global warming potential about 29% of that of a mixture of about 68.9 wt% difluoromethane and 31.1 wt% 2,3,3,3-tetrafluoropropene.” Independent claim 21 similarly recites the limitations “wherein the composition is formed from recycled difluoromethane and recycled pentafluoroethane, and the recycled difluoromethane and the recycled pentafluoroethane have a net global warming potential of about 0.”
[0013] & [0077] of the present invention’s specification indicate recycling refrigerants effectively neutralizes their global warming potential (GWP) as the GWP value is already accounted for at the time of initial production or importation as compared to the actual GWP value of a new, virgin material. Note, this discussion implies the limitations do not mean that the chemical compounds actually have a zero GWP (or a lower percentage of a GWP relative to another reference composition) but are merely calculated as net/relatively zero (or relatively lower to another reference composition) because the chemical compounds were recycled/pre-existing. This is especially shown at Table 2 of the specification where it is disclosed virgin compositions of the claimed refrigerant blend and R-454B have true/absolute GWP values of 744 and 466, respectively, but the claimed refrigerant blend can be calculated as a net GWP of 149 if 80% of the material is recycled or a net GWP of 0 if 100% of the material is recycled.
Accordingly, the claimed terms “formed from”, “recycled”, and “net global warming potential” describe processes of making the product and are thus product-by-process limitations. Product-by-process limitations are extended little if any patentable weight except to the extent they suggest structure of the product, the refrigerant composition. Here, the claims merely require the recited blend of difluoromethane, pentafluoroethane, CO2, and 1,3,3,3-tetrafluoropropene regardless of their origin, source, or how they were made because new-production, virgin molecules of difluoromethane, pentafluoroethane, CO2, and/or 1,3,3,3-tetrafluoropropene are chemically and structurally identical to reclaimed/recycled molecules of difluoromethane, pentafluoroethane, CO2, and/or 1,3,3,3-tetrafluoropropene. The recycled and net GWP limitations merely describe or imply the source/origin of the components which do not structurally or chemically affect the actual, final refrigerant composition product. See MPEP 2113.
The following prior art is cited as additional documentary evidence supporting the Office’s position of claim interpretation regarding the terms “recycled” and “net global warming potential” and is considered highly pertinent to Applicant's disclosure/arguments:
Packo (US 5,050,388 A) teach the recycling of refrigerant fluids is a known initiative to improve the environment and recycling and reclamation of refrigerants is important from an economic point of view as well as an environmental point of view
(col. 1 lines 10-12 and col. 2 lines 6-17). Packo constitutes evidence the instantly claimed recycled and related net GWP limitations are effectively process limitations describing or implying the source/origin/method-of-making the components which do not structurally or chemically affect the actual, final refrigerant composition product.
SDS for both R-32 (R-32 SDS, 2021) and R-125 (Forane© 125 SDS, 2015) indicate the refrigerants (difluoromethane and pentafluoroethane, respectively) should be recovered/reclaimed and/or recycled and should not be vented/discharged to the atmosphere. See § 13 of both SDS.
40 CFR 82 Subpart F to Recycling and Emissions Reduction (as in effect on 01/01/2020) is drawn to laws/regulations concerning recycling and emissions reduction as well as standards for recycling and reclaiming refrigerants. 40 CFR 82.164(a)(1) (p. 28 of the supplied copy) requires reclaimed refrigerant for (re)sale to adhere to specifications set forth in appendix A of the subpart. Reclaim is defined as to reprocess recovered refrigerant to all the specification in appendix A of the subpart (p. 4 of the supplied copy), which is another way of saying recycling a refrigerant for further, continued use. Appendix A begins on p. 33 of the supplied copy. The scope of Appendix A explicitly includes setting forth standards and specifications for reclaimed/recycled R-32 and R-125 (p. 33). The standards/specifications for reclaimed R-32 are in Table 1A on p. 38. The standards/specifications for reclaimed R-125 are in a continuation of Table 1A on p. 40. The Purpose and Scope Sections (sections 1 & 2) of Appendix A specifically indicates the purpose of these standards/specification are “to evaluate and accept/reject refrigerants regardless of source (i.e., new, reclaimed and/or repackaged) for use in new and existing refrigeration and air-conditioning products” (p. 33), which constitutes strong evidence the instantly claimed recycled and net GWP limitations merely describe or imply the source/origin/method-of-making the components which do not structurally or chemically affect the actual, final refrigerant composition product and that new “virgin” refrigerant(s) are structurally and chemically the same/indistinguishable from reclaimed/recycled refrigerant(s).
Allgood et al. (US 2021/0122962 A1) teach a process of reducing the global warming potential (GWP) of a refrigerant blend by effectively recycling one or more hydrofluorocarbon compounds, e.g., difluoromethane and/or pentafluoroethane, to produce a refrigerant blend having a reduced GWP compared to a refrigerant blend not having the purified/recycled hydrofluorocarbon compound(s) (para. 0004-0014). Allgood et al. elaborate and teach the concept and meaning of an “effective GWP” as referring to the GWP of a refrigerant mixture of blend containing hydrofluorocarbon(s) having been reclaimed, recycled, and/or purified to significantly reduce the effective GWP of the mixture relative to the GWP of a refrigerant mixture or blend that contains only newly manufactured, “virgin” components (para. 0017-0018). Allgood et al.’s concept of “effective GWP” by recycling difluoromethane and/or pentafluoroethane is equivalent to the present invention’s concept of “net GWP” and constitutes evidence the instantly claimed recycled and net GWP limitations merely describe or imply the source/origin/method-of-making the components which do not structurally or chemically affect the actual, final refrigerant composition product.
AHRI Standard 700-2017 (2017) has a similar disclosure of facts compared to both 40 CFR 82 Subpart F to Recycling and Emissions Reduction and Allgood et al. and further corroborates the Office’s position of Claim Interpretation.
Interpretation of “consisting of” language of claim 1
The claims as amended filed 12/05/2024 introduce the limitations that the refrigerant composition is “consisting of” the recited difluoromethane, pentafluoroethane, CO2, and 1,3,3,3-tetrafluoropropene components “wherein the difluoromethane and pentafluoroethane are a distilled fraction of reclaimed refrigerants, with the distilled fraction containing 2.11 x 10-11 wt% oils and 1.95 x 10-27 wt% water” in independent claim 1.
In independent claim 1, the transitional phrase “consists of” excludes any element, step, or ingredient not specified in the claim except for impurities ordinarily associated therewith. See MPEP 2111.03, II. The claim is limited to the recited amounts of difluoromethane, pentafluoroethane, CO2, 1,3,3,3-tetrafluoropropene and ordinary impurities associated with these components and refrigerant compositions. Review of Applicant’s original specification and remarks of record to date as well as the prior art of record reveal that oil and water are ordinary impurities associated with refrigerant compositions.
For purposes of claim interpretation, note that the oil and water impurity concentrations are with respect to a “distilled fraction” (a discrete component or discrete portion of the composition, i.e., an intermediate composition) rather than the entire, final refrigerant composition. Applicant is essentially claiming a discrete distilled fraction that is used to make the refrigerant composition further comprising CO2 and 1,3,3,3-tetrafluoropropene in addition to the “distilled fraction’s” difluoromethane, pentafluoroethane, oil and water components. A discrete intermediate distilled fraction component is not necessarily required to reject the instant claims over prior art as the final refrigerant composition is recited to further require additional components (CO2 and 1,3,3,3-tetrafluoropropene) besides those recited in the distilled fraction and this discrete distilled fraction is nevertheless combined with the remaining components to obtain a distinct final composition. As is/will be shown below, both oil and water are each ordinary impurities associated with all of difluoromethane, pentafluoroethane, CO-2, and 1,3,3,3-tetrafluoropropene compounds when provided as refrigerant.
The characterization of the claimed distilled fraction claim element as a discrete component describes a process of preparing the refrigerant composition, which is a product-by-process limitation. Product-by-process limitations are not limited to the recited steps except to the extent they suggest structure of the composition/product. Here, the claims merely require a refrigerant composition consisting of 72-74 wt% difluoromethane, 7-8 wt% pentafluoroethane, 1-3 wt.% CO2, 17-19 wt.% 1,3,3,3-tetrafluoropropene, oil(s) in a range of at least 1.53-1.67 x 10-11 wt.% oils as a minimum to an ordinary impurity amount as a maximum, and water in a range of at least 1.41-1.54 x 10-27 wt.% water as a minimum to an ordinary impurity amount as a maximum. These minimum oil+water values were obtained by multiplying the recited intermediate distilled fraction concentrations by the percentage the total amount of difluoromethane and pentafluoroethane are in the final refrigerant composition (which are present in a total amount of 79% to 82% per the summed min/max values of the 72-74 wt.% difluoromethane and 7-8 wt.% pentafluoroethane recited in the independent claims; 72%+7%=79% and 74%+8%=82%). The maximum oil+water value is limited to ordinary impurity amounts to the extent known in the art. The instant claims are not limited to the particular oil/water concentrations of the intermediate distilled fraction because the remaining components may broadly further contain additional oil and/or water via the language of the claims that requires additional components that are known to also contain oil+water as impurities. The instant claims are also not limited to requiring the refrigerant composition be made by any particular process (such as distillation to obtain a “distilled fraction”). Note that a method comprising a distillation process was non-elected by Applicant (see the response filed 05/17/2023).
Note that this position of interpretation regarding the oil+water concentrations of the intermediate distilled fraction is further compounded and supported by the refrigerant mixture of claim 14 which “comprises” the “closed” refrigerant composition of claim 1 and an additional lubricant component. The term “comprising” is synonymous with "including," "containing," or "characterized by," is inclusive or open-ended and does not exclude additional, unrecited elements or method steps. See MPEP 2111.03, I. Additionally, the "consisting of" phrase limits only the element set forth in that clause other elements are not excluded from the claim as a whole. See MPEP 2111.03, II. The construction of claim 14 where the closed “consisting of” language is nested underneath the open “comprising” language of the preamble opens the claim to other unrecited components and is effectively more broad than claim 1. Claim 14 requires the “refrigerant composition” of claim 1 as an intermediate composition and the “refrigerant mixture” is the final composition. Oils are lubricants in the refrigeration arts, and claim 14 recites there is at least 0.01 wt.% and up to 5 wt.% lubricant/oil in the final “refrigerant mixture”. In other words, the refrigerant mixture of claim 14 may, if not must, clearly contain an oil/lubricant well in-excess of the 2.11 x 10-11 wt.% oils concentration of claim 1’s intermediate distilled fraction and/or any implications thereof of the oils/water concentrations of the closed “consisting of” refrigerant composition of claim 1. This interpretation of claim 14 further supports the Office’s above position that the final refrigerant composition of claim 1 is not necessarily limited to the narrow, single amount of oil and/or water recited as a part of the intermediate distilled fraction of claim 1.
Interpretation of “consisting essentially of” language of claim 3
The claims as amended filed 12/05/2024 introduce the limitations that the refrigerant composition is “consisting essentially of” the recited difluoromethane, pentafluoroethane, CO2, and 1,3,3,3-tetrafluoropropene components “wherein the difluoromethane and pentafluoroethane are a distilled fraction of reclaimed refrigerants, with the distilled fraction containing about 2.11 x 10-11 wt% oils and about 1.95 x 10-27 wt% water” in independent claim 3.
In independent claim 3, the transitional phrase “consisting essentially of” limits the scope of a claim to the specified materials or steps "and those that do not materially affect the basic and novel characteristic(s)" of the claimed invention. See MPEP 2111.03, III. This transitional phrase is very broad and synonymous with “comprising” (which is inclusive or open-ended and does not exclude additional, unrecited elements or method steps). Note that there is no definition or discussion in the original specification of what would materially affect the basic and novel characteristics of the claimed refrigerant composition invention. The claim is not as restrictive as asserted by Applicant.
For purposes of claim interpretation in claim 3, note that the oil and water impurity concentrations are with respect to a “distilled fraction” (a discrete component or discrete portion of the composition, i.e., an intermediate composition) rather than the entire, final refrigerant composition. Applicant is essentially claiming a discrete distilled fraction that is used to make the refrigerant composition further comprising CO2 and 1,3,3,3-tetrafluoropropene in addition to the “distilled fraction’s” difluoromethane, pentafluoroethane, oil and water components. A discrete intermediate distilled fraction component is not necessarily required to reject the instant claims over prior art as the final refrigerant composition is recited to further consist essentially of/comprise additional components besides those recited in the distilled fraction and this discrete distilled fraction is nevertheless combined with the remaining components to obtain a distinct final composition. It is appreciated this limitation of referring to the difluoromethane and pentafluoroethane components with the oil and water impurities in the recited concentrations might be more broad than intended by Applicant.
The characterization of the claimed distilled fraction claim element as a discrete component describes a process of preparing the refrigerant composition, which is a product-by-process limitation. Product-by-process limitations are not limited to the recited steps except to the extent they suggest structure of the composition/product. Here, the claims merely require a refrigerant composition comprising 72-74 wt% difluoromethane, 7-8 wt% pentafluoroethane, 1-3 wt.% CO2, 17-19 wt.% 1,3,3,3-tetrafluoropropene, at least about 1.53-1.67 x 10-11 wt.% oils as an open-ended range with no particular maximum concentration so long as the composition sums to 100wt.%, and at least about 1.41-1.54 x 10-27 wt.% water as an open-ended range with no particular maximum concentration so long as the composition sums to 100wt.%. These oil+water impurity values were obtained by multiplying the recited intermediate distilled fraction concentrations by the percentage the total amount of difluoromethane and pentafluoroethane are in the final refrigerant composition (which are present in a total amount of 79% to 82% per the summed min/max values of the 72-74 wt.% difluoromethane and 7-8 wt.% pentafluoroethane recited in the independent claims; 72%+7%=79% and 74%+8%=82%). The instant claims are not limited to the particular oil/water concentrations of the intermediate distilled fraction because the remaining components may broadly further contain additional oil and/or water via the recited “consisting essentially of” language of the claims that permits the inclusion of additional oil+water in the entire, final refrigerant composition above the recited concentration values since there is nothing of record of would materially affect the basic and novel characteristics of the claimed refrigerant composition invention. The instant claims are also not limited to requiring the refrigerant composition be made by any particular process (such as distillation to obtain a “distilled fraction”). Note that a method comprising a distillation process was non-elected by Applicant (see the response filed 05/17/2023).
Claim Objections
Claim 21 is objected to because of the following informalities: Applicant is suggested to amend “the composition” in the limitation “wherein the composition is formed from …” to read as “the refrigerant composition” in order for the antecedent basis of all terms in the claim to match and to improve clarity. Appropriate correction is required.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 2, 4-15 are rejected under 35 U.S.C. 103 as being unpatentable over Low (US 2014/0222699 A1) in view of Allgood et al. (US 2021/0122962 A1) and AHRI Standard 700-2017 (2017).
As to claims 1, 2, and 4-13, Low teaches a heat transfer composition comprising up to 30% by weight carbon dioxide (R-744), about 30-80% by weight difluoromethane (R-32), and 1,3,3,3-tetrafluoropropene (R-1234ze(e)) (abstract). The composition is suitable as a replacement refrigerant for a variety of existing refrigerants such as R-1234yf, R-22, R-410A, and R-32 (para. 0001, 0060, & 0094). A preferred composition comprises about 4 to about 12% by weight R-744, about 45 to about 80% by weight R-32, and about 8 to about 51% by weight R-1234ze(E) (para. 0023). See also Table 3. Addition of a minor amount of pentafluoroethane (R-125) of up to 20% by weight is suitable to further reduce the flammability of the composition or to render it non-flammable (para. 0037). The composition typically has theoretical energy efficiencies close or comparable to R-32, and higher than R-410A, with comparable cooling/heating capacities, operating pressures, and temperature glide to R-410A and reduced GWP and flammability relative to R-32 (para. 0019, 0026 0049, & 0052).
Low differs from the claimed subject matter in that it does not disclose a composition which reads on the claimed refrigerant composition with sufficient specificity to constitute anticipation.
However, at the time of the effective filing date it would have been obvious to a person of ordinary skill in the art to formulate and make such a refrigerant composition consisting of difluoromethane (R-32), pentafluoroethane (R-125), CO2 (R-744), and 1,3,3,3-tetrafluoropropene (R-1234ze) because Low teaches all the ingredients recited by Applicant in the same or nearly the same amount/range are suitable for inclusion in a heat transfer/refrigerant composition suitable to replace existing refrigerants such as R-410A and R-22.
The disclosed ranges of R-32, R-125, R-744, and R-1234ze(E) of Low (Id.) overlap and/or encompass the claimed ranges/amounts of difluoromethane, pentafluoroethane, CO2 and 1,3,3,3-tetrafluoropropene, respectively. About 30-80% by weight R-32 and about 45 to about 80% by weight R-32 each overlaps and/or encompass the claimed ranges/amount of difluoromethane; up to 20% R-125, in other words, 0-20 wt.% R-125, overlaps and/or encompass the claimed ranges/amount of pentafluoroethane; up to 30% by weight R-744, in other words, 0-30 wt.% R-744, overlaps and/or encompass the claimed ranges/amount of CO2; and about 8 to about 51% by weight R-1234ze(E) overlaps and/or encompass the claimed ranges/amount of 1,3,3,3-tetrafluoropropene. The preferred disclosed range of R-744 of Low (Id.) encompasses the claimed range/amount of carbon dioxide especially in view of the “about” modifier recited in the reference; a lower boundary of about 4% by weight as in the reference approaches, if not touches, encompasses, or overlaps, the claimed 1-3 wt% and 2 wt% values. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976) & In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). See also MPEP 2144.05. As no other components are present or deemed necessary, the construction of the above composition of R-32, R-125, R-744, and R-1234ze(E) the via the teachings of Low (Id.) read on the claimed closed “consisting of” language of the claims.
Low fails to teach the refrigerant composition comprises a minor amount of oil or water unavoidable/ordinary impurities of at least 1.53-1.67 x 10-11 wt.% oils as a minimum to an ordinary impurity amount as a maximum and water in a range of at least 1.41-1.54 x 10-27 wt.% water as a minimum to an ordinary impurity amount as a maximum.
However, Allgood et al. teaches preparing refrigerant blends having low global warming potential comprising purified refrigerant compounds (abstract). It is disclosed it is beneficial to remove impurities including lubricants and water from refrigerants when formulating refrigerating compositions (para. 0018) and refrigerants have maximum allowable levels of such impurities (para. 0086-0087, including the Tables 1 to 8 nested therein). Note, oils are lubricants in the refrigeration arts, and Allgood et al. also teach and support such equivalence (e.g., para. 0228-0229). The cited Tables demonstrate refrigerant components (and composition blends thereof) generally have maximum allowable levels of water of at most about 10 ppm (which includes 10 ppm, i.e. 0.0001 wt.%, as an upper limit and zero as a lower limit) and maximum allowable levels of “all other volatile impurities” of at most about 0.5 wt.% (which includes 0.5 wt.% as an upper limit and zero as a lower limit) and “high boiling residue” of at most about 0.01 wt.% (which includes 0.01 wt.% as an upper limit and zero as a lower limit). Allgood et al.’s disclosed maximum amounts of “high boiling residue” and/or “all other volatile impurities” overlap and encompass the recited oil/lubricant impurity range implied by the recited water concentration of the “distilled fraction”. Allgood et al.’s disclosed maximum amount of water also overlaps and encompasses the recited water impurity range implied by the recited water concentration of the “distilled fraction”. Therein, Allgood et al. teach pentafluoroethane (R-125) has a maximum allowable level of water impurity of 10 ppm and maximum allowable level of oil impurity (high boiling residue) of 0.01 wt.% (Table 1 on p.4) which corresponds to a water impurity of zero to 10 ppm and an oil impurity of zero to 100 ppm. Allgood et al. also teach 1,3,3,3-tetrafluoropropene (R-1234ze(E)) has a maximum allowable level of water impurity of 10 ppm and maximum allowable level of oil impurity (high boiling residue) of 0.01 wt.% (Table 2 on p.5) which corresponds to a water impurity of zero to 10 ppm and an oil impurity of zero to 100 ppm. Allgood et al. also teach CO2 (R-744) has a maximum allowable level of water impurity of 10 ppm and maximum allowable level of oil impurity (high boiling residue) of 0.0005 wt.% (Table 4 on p.6) which corresponds to a water impurity of zero to 10 ppm and an oil impurity of zero to 5 ppm. The high purity can be obtained by a variety of ways including distillation, decantation, molecular sieves, vapor space purging and combinations thereof (para. 0181-0185); molecular sieves are disclosed as particularly useful for water removal and distillation and decantation are disclosed as effective for removal of organic impurities (para. 0181). See also the totality of the general purification steps at para. 0059-0062, 0088-0097, & 0178-0185. Allgood et al. teach unpurified refrigerants can lead to detrimental to a system the unpurified refrigerant is later used in (para. 0018).
If Allgood et al. were not enough to demonstrate typical ordinary/unavoidable impurities of difluoromethane, pentafluoroethane, carbon dioxide, and 1,3,3,3-tetrafluoropropene, note that Allgood et al. directly cites and incorporates the AHFI Standard 700-2017 specification for refrigerants determining the maximum allowable levels of contaminants in refrigerants (para. 0087). AHRI Standard 700-2017 is an art standard that establishes purity specifications for acceptability of the listed refrigerants therein regardless of source (new, reclaimed and/or repackaged) for use in new and existing refrigeration and air-conditioning products (Section 1 p.1). Therein, AHRI Standard 700-2017 teach difluoroethane (R-32) has a maximum allowable level of water impurity of 10 ppm and maximum allowable level of oil impurity (high boiling residue) of 0.01 wt.% (Table 1A on p.7) which corresponds to a water impurity of zero to 10 ppm and an oil impurity of zero to 100 ppm. AHRI Standard 700-2017 also teach pentafluoroethane (R-125) has a maximum allowable level of water impurity of 10 ppm and maximum allowable level of oil impurity (high boiling residue) of 0.01 wt.% (Table 1A on p.8) which corresponds to a water impurity of zero to 10 ppm and an oil impurity of zero to 100 ppm. AHRI Standard 700-2017 also teach 1,3,3,3-tetrafluoropropene (R-1234ze(E)) has a maximum allowable level of water impurity of 10 ppm and maximum allowable level of oil impurity (high boiling residue) of 0.01 wt.% (Table 1A on p.9) which corresponds to a water impurity of zero to 10 ppm and an oil impurity of zero to 100 ppm. AHRI Standard 700-2017 also teach CO2 (R-744) has a maximum allowable level of water impurity of 10 ppm and maximum allowable level of oil impurity (high boiling residue) of 0.0005 wt.% (Table 1C on p.11) which corresponds to a water impurity of zero to 10 ppm and an oil impurity of zero to 5 ppm.
Accordingly, at the time of the effective filing date it would have been obvious to a person of ordinary skill in the art to arrive within the minor amount of oil or water unavoidable/ordinary impurities of at least 1.53-1.67 x 10-11 wt.% oils as a minimum to an ordinary impurity amount as a maximum and water in a range of at least 1.41-1.54 x 10-27 wt.% water as a minimum to an ordinary impurity amount as a maximum as recited/implied by the claim from providing the teachings of Allgood et al.’s refrigerant component purity and/or the teachings of AHRI Standard 700-2017’s industry-wide refrigerant component purity standards to Low’s refrigerant composition of with a reasonable expectation of success. Allgood et al. teach it is beneficial to remove impurities including lubricants and water from refrigerants to within certain tolerances and maximum amounts encompassing those effectively claimed or else the composition may be detrimental to the system the unpurified refrigerant is later used in, which strongly motivates providing Allgood et al.’s purified, lowered impurity concentration teachings to Low’s composition. AHRI Standard 700-2017 teach and establish industry-wide purity specifications for acceptability of refrigerants therein regardless of source (new, reclaimed and/or repackaged) for use in new and existing refrigeration and air-conditioning products, which strongly motivates providing AHRI Standard 700-2017’s teachings of purification standards/concentrations to Low’s composition in order to obtain sufficient or compliant purity of Low’s composition. As is shown by the Allgood et al. and AHRI Standard 700-2017 secondary references, the claimed/implied amounts of oils and water are merely ordinary/unavoidable impurities of difluoromethane-, pentafluoroethane-, carbon dioxide-, and 1,3,3,3-tetrafluoropropene-based refrigerant components; the incorporation of the teachings of these secondary references with the formulated/relied upon composition of the Low primary reference fully meets and complies with the closed “consisting of” language of the claims.
Claims 4-13 are also drawn to various latent properties of the claimed refrigerant composition. The Examiner notes that, while the disclosure/comparative showing in the specification compares the claimed refrigerant composition to R-454B (i.e., 68.9/31.1 R-32/R-1234yf) to demonstrate its similar properties and capability of replacing R-454B, the disclosure/comparative showing also compares the claimed refrigerant mixture to R-410A (i.e., 50/50 R-32/R-125), as well. In some instances within the showing, the claimed refrigerant behaves more similarly to R-410A than R-454B. Note that Low teach the heat transfer/refrigerant composition is a R-410A replacement and has a theoretical energy efficiency close or higher than R-410A, with comparable cooling/heating capacities, operating pressures, and temperature glide to R-410A (Id., see also para. 0109+). See also Table 3 of the reference. A person of ordinary skill in the refrigerant art would expect the recited compositions to possess properties similar to those compositions disclosed and encompassed by the reference(s), absent a showing to the contrary.
As to claims 14 and 15, Low teaches the heat transfer compositions are preferably combined with a lubricant (para. 0054). Mineral oils, alkylbenzene oil (PAB), and polyol ester (POE) are exemplary lubricants (para. 0055). Determination of the lubricating-effect amount of the disclosed lubricant would amount to routine experimentation which is motivated by the reference.
Any remaining limitations among claims 1, 2, and 4-15 are product-by-process limitations met by the structure taught by the prior art.
Claims 14-16 are rejected under 35 U.S.C. 103 as being unpatentable over Low (US 2014/0222699 A1) in view of Allgood et al. (US 2021/0122962 A1) and AHRI Standard 700-2017 (2017) as applied to claims 1, 2, and 4-15 above, and further in view of Carr et al. (US 2013/0200294 A1).
The disclosure of Low in view of Allgood et al. and AHRI Standard 700-2017 is relied upon as set forth above.
Low in view of Allgood et al. and AHRI Standard 700-2017 teaches a refrigerant composition/mixture comprising (note, instant claim 14 recites “comprising” in its preamble rather than “consisting of” as in claim 1) difluoromethane, pentafluoroethane, carbon dioxide, and 1,3,3,3-tetrafluoropropene, and a polyol ester lubricant, where the refrigerant components themselves may comprise oil and water impurities/contaminants in typical minor/ordinary/unavoidable concentrations (Id.).
Alternatively regarding claims 14 & 15, it might be argued Low fail to sufficiently teach the refrigerant mixture comprises 0.1-5 wt% lubricant. Regarding claim 16 Low fails to teach the polyol ester lubricant is an ester of a neopentyl polyol as recited.
However, Carr et al. teach polyol ester lubricant compositions comprising esters of neopentyl alcohols having excellent lubricity, load carrying properties, and low temperature properties suitable for provision in heat transfer/refrigerant compositions (abstract, para. 0076-0078, etc.). Note, Carr et al. also terms their lubricants as refrigeration oils (title). Carr et al. teach various formulae that read on an ester reaction (or intermediate) product of at least one (initial, reactant) neopentyl polyol represented by the claimed structural formula (para. 0027+, 0054+, etc.). Carr et al. teach the mixing ratio of the polyol ester lubricant to the refrigerant is not particularly restricted, but the lubricant may be present in a ratio of 1 to 500 parts by weight per 100 parts by weight of the refrigerant (para. 0075), which overlaps the claimed range.
Thus, at the time of the effective filing date it would have been obvious to a person of ordinary skill in the art to provide a lubricant ester of a neopentyl polyol/alcohol as taught by Carr et al. as the polyol ester lubricant of Low (in view of Allgood et al. and AHRI Standard 700-2017) in order to obtain a heat transfer/refrigerant composition with sufficient, if not improved, lubrication with a reasonable expectation of success. It would have also been obvious to a person of ordinary skill in the art to arrive within the claimed range(s)/ratio of refrigerant and lubricant from the combined teachings of the reference with a reasonable expectation of success because Carr et al. teach the mixing ratio of the polyol ester lubricant to the refrigerant is not particularly restricted and the lubricant may be present in a ratio of 1 to 500 parts by weight per 100 parts by weight of the refrigerant (para. 0075).
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Low (US 2014/0222699 A1) in view of Allgood et al. (US 2021/0122962 A1) and AHRI Standard 700-2017 (2017) as applied to claims 1, 2, and 4-15 above or over Low (US 2014/0222699 A1) in view of Allgood et al. (US 2021/0122962 A1) and AHRI Standard 700-2017 (2017) and further in view of Carr et al. (US 2013/0200294 A1) as applied to claims 1, 2, and 4-16 above, and further in view of Minor et al. (US 2006/0243945 A1).
The disclosures of: 1) Low in view of Allgood et al. and AHRI Standard 700-2017 and 2) Low in view of Allgood et al. and AHRI Standard 700-2017 and further in view of Carr are relied upon as set forth above.
Low in view of Allgood et al. and AHRI Standard 700-2017 and Low in view of Allgood et al. and AHRI Standard 700-2017 and further in view of Carr teach a refrigerant composition/mixture comprising (note, claim 14, the parent claim of instant claim 17, recites “comprising” rather than “consisting of” as in claim 1) difluoromethane, pentafluoroethane, carbon dioxide, and 1,3,3,3-tetrafluoropropene, and a lubricant, where the refrigerant components themselves may comprise oil and water impurities/contaminants in typical minor/ordinary/unavoidable concentrations (Id.). Low teaches the refrigerant mixture may comprise additional optional components (e.g., para. 0082), but fails to teach the refrigerant mixture specifically further comprises an ultraviolet dye.
However, Minor et al. is generally drawn to fluoroolefin-containing heat transfer/refrigerant composition (abstract), including compositions comprising 1,3,3,3-tetrafluoropropene (HFC-1234ze) and at least compound selected from, among others, difluoromethane (HFC-32), pentafluoroethane, and carbon dioxide (para. 0010). Minor et al. teach providing an ultraviolet dye as a useful additional component in the composition in order to detect leaks of the composition by permitting one to observe the fluorescence of the dye in the composition at a leak point or in the vicinity of apparatus containing the composition (para. 0159+).
Thus, at the time of the effective filing date it would have been obvious to a person of ordinary skill in the art to provide an ultraviolet dye as taught by Minor et al. in the refrigerant composition/mixture of Low in view of Allgood et al. and AHRI Standard 700-2017 and/or Low in view of Allgood et al. and AHRI Standard 700-2017 and further in view of Carr in order to sufficiently or more-easily detect leaks of the heat transfer/refrigerant composition during its storage and use.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Low (US 2014/0222699 A1) in view of Allgood et al. (US 2021/0122962 A1).
Low teaches a heat transfer composition comprising up to 30% by weight carbon dioxide (R-744), about 30-80% by weight difluoromethane (R-32), and 1,3,3,3-tetrafluoropropene (R-1234ze(e)) (abstract). The composition is suitable as a replacement refrigerant for a variety of existing refrigerants such as R-1234yf, R-22, R-410A, and R-32 (para. 0001, 0060, & 0094). A preferred composition comprises/consists essentially of about 4 to about 12% by weight R-744, about 45 to about 80% by weight R-32, and about 8 to about 51% by weight R-1234ze(E) (para. 0023). See also Table 3. Addition of a minor amount of pentafluoroethane (R-125) of up to 20% by weight is suitable to further reduce the flammability of the composition or to render it non-flammable (para. 0037). The composition typically has theoretical energy efficiencies close or comparable to R-32, and higher than R-410A, with comparable cooling/heating capacities, operating pressures, and temperature glide to R-410A and reduced GWP and flammability relative to R-32 (para. 0019, 0026 0049, & 0052).
Low differs from the claimed subject matter in that it does not disclose a composition which reads on the claimed refrigerant composition with sufficient specificity to constitute anticipation.
However, at the time of the effective filing date it would have been obvious to a person of ordinary skill in the art to make such a refrigerant composition because Low teaches all the ingredients recited by Applicant in the same or nearly the same amount/range are suitable for inclusion in a heat transfer/refrigerant composition suitable to replace existing refrigerants such as R-410A and R-22.
The disclosed ranges of R-32, R-125, R-744, and R-1234ze(E) of Low (Id.) overlap and/or encompass the claimed ranges/amounts of difluoromethane, pentafluoroethane, CO2 and 1,3,3,3-tetrafluoropropene, respectively. About 30-80% by weight R-32 and about 45 to about 80% by weight R-32 each overlaps and/or encompass the claimed ranges/amount of difluoromethane; up to 20% R-125, in other words, 0-20 wt.% R-125, overlaps and/or encompass the claimed ranges/amount of pentafluoroethane; up to 30% by weight R-744, in other words, 0-30 wt.% R-744, overlaps and/or encompass the claimed ranges/amount of CO2; and about 8 to about 51% by weight R-1234ze(E) overlaps and/or encompass the claimed ranges/amount of 1,3,3,3-tetrafluoropropene. The preferred disclosed range of R-744 of Low (Id.) encompasses the claimed range/amount of carbon dioxide especially in view of the “about” modifier recited in the reference; a lower boundary of about 4% by weight as in the reference approaches, if not touches, encompasses, or overlaps, the claimed 1-3 wt% and 2 wt% values. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976) & In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). See also MPEP 2144.05.
Low fails to teach the refrigerant composition comprises a minor amount of oil or water impurities (such as at least about 1.53 x 10-11 wt.% oils and at least about 1.41 x 10-27 wt.% water as open-ended ranges with no particular maximum concentration so long as the composition sums to 100wt.%).
However, Allgood et al. teaches preparing refrigerant blends having low global warming potential comprising purified refrigerant compounds (abstract). It is disclosed it is beneficial to remove impurities including lubricants and water from refrigerants when formulating refrigerating compositions (para. 0018) and refrigerants have maximum allowable levels of such impurities (para. 0086-0087, including the Tables 1 to 8 nested therein). Note, oils are lubricants in the refrigeration arts, and Allgood et al. also teach and support such equivalence (e.g., para. 0228-0229). The cited Tables demonstrate refrigerant components (and composition blends thereof) generally have maximum allowable levels of water of at most about 10 ppm (which includes 10 ppm, i.e. 0.0001 wt.%, as an upper limit and zero as a lower limit) and maximum allowable levels of “all other volatile impurities” of at most about 0.5 wt.% (which includes 0.5 wt.% as an upper limit and zero as a lower limit) and “high boiling residue” of at most about 0.01 wt.% (which includes 0.01 wt.% as an upper limit and zero as a lower limit). Allgood et al.’s disclosed maximum amounts of “high boiling residue” and/or “all other volatile impurities” overlap and encompass the recited oil/lubricant impurity range implied by the recited water concentration of the “distilled fraction”. Allgood et al.’s disclosed maximum amount of water also overlaps and encompasses the recited water impurity range implied by the recited water concentration of the “distilled fraction”. The high purity can be obtained by a variety of ways including distillation, decantation, molecular sieves, vapor space purging and combinations thereof (para. 0181-0185); molecular sieves are disclosed as particularly useful for water removal and distillation and decantation are disclosed as effective for removal of organic impurities (para. 0181). See also the totality of the general purification steps at para. 0059-0062, 0088-0097, & 0178-0185. Allgood et al. teach unpurified refrigerants can lead to detrimental to a system the unpurified refrigerant is later used in (para. 0018).
Accordingly, at the time of the effective filing date it would have been obvious to a person of ordinary skill in the art to arrive within the recited minor amounts of oil and water impurities (such as at least about 1.53 x 10-11 wt.% oils and at least about 1.41 x 10-27 wt.% water as open-ended ranges with no particular maximum concentration so long as the composition sums to 100wt.%) from providing the teachings of Allgood et al.’s refrigerant component purity to Low’s refrigerant composition of with a reasonable expectation of success. Allgood et al. teach it is beneficial to remove impurities including lubricants and water from refrigerants to within certain tolerances and maximum amounts encompassing those effectively claimed or else the composition may be detrimental to the system the unpurified refrigerant is later used in, which strongly motivates providing Allgood et al.’s purified, lowered impurity concentration teachings to Low’s composition.
The claim also recites latent properties of the claimed refrigerant composition (that the composition has properties approximating a mixture of 68.9 wt.% difluoromethane/R-32 and 31.1 wt% 2,3,3,3-tetrafluoropropene/R-1234yf). The Examiner notes that, while the disclosure/comparative showing in the specification compares the claimed refrigerant composition to R-454B (i.e., 68.9/31.1 R-32/R-1234yf) to demonstrate its similar properties and capability of replacing R-454B, the disclosure/comparative showing also compares the claimed refrigerant mixture to R-410A (i.e., 50/50 R-32/R-125), as well. In some instances within the showing, the claimed refrigerant behaves more similarly to R-410A than R-454B. Note that Low teach the heat transfer/refrigerant composition is a R-410A replacement and has a theoretical energy efficiency close or higher than R-410A, with comparable cooling/heating capacities, operating pressures, and temperature glide to R-410A (Id., see also para. 0109+). See also Table 3 of the reference. A person of ordinary skill in the refrigerant art would expect the recited compositions to possess properties similar to those compositions disclosed and encompassed by the reference, absent a showing to the contrary.
Any remaining limitations in claim 3 are product-by-process limitations met by the structure taught by the prior art.
Claims 21-23 are rejected under 35 U.S.C. 103 as being unpatentable over Low (US 2014/0222699 A1).
As to claims 21 and 22, Low teaches a heat transfer composition comprising up to 30% by weight carbon dioxide (R-744), about 30-80% by weight difluoromethane (R-32), and 1,3,3,3-tetrafluoropropene (R-1234ze(E)) (abstract). The composition is suitable as a replacement refrigerant for a variety of existing refrigerants such as R-1234yf, R-22, R-410A, and R-32 (para. 0001, 0060, & 0094). A preferred composition comprises about 4 to about 12% by weight R-744, about 45 to about 80% by weight R-32, and about 8 to about 51% by weight R-1234ze(E) (para. 0023). See also Table 3. Addition of a minor amount of pentafluoroethane (R-125) of up to 20% by weight is suitable to further reduce the flammability of the composition or to render it non-flammable (para. 0037). The composition typically has theoretical energy efficiencies close or comparable to R-32, and higher than R-410A, with comparable cooling/heating capacities, operating pressures, and temperature glide to R-410A and reduced GWP and flammability relative to R-32 (para. 0019, 0026 0049, & 0052).
Low differs from the claimed subject matter in that it does not disclose a composition which reads on the claimed refrigerant composition with sufficient specificity to constitute anticipation.
However, at the time of the effective filing date it would have been obvious to a person of ordinary skill in the art to make such a refrigerant composition because Low teaches all the ingredients recited by Applicant in the same or nearly the same amount/range are suitable for inclusion in a heat transfer/refrigerant composition suitable to replace existing refrigerants such as R-410A and R-22.
The disclosed ranges of R-32, R-125, R-744, and R-1234ze(E) of Low (Id.) overlap and/or encompass the claimed ranges/amounts of difluoromethane, pentafluoroethane, CO2 and 1,3,3,3-tetrafluoropropene, respectively. About 30-80% by weight R-32 and about 45 to about 80% by weight R-32 each overlaps and/or encompass the claimed ranges/amount of difluoromethane; up to 20% R-125, in other words, 0-20 wt.% R-125, overlaps and/or encompass the claimed ranges/amount of pentafluoroethane; up to 30% by weight R-744, in other words, 0-30 wt.% R-744, overlaps and/or encompass the claimed ranges/amount of CO2; and about 8 to about 51% by weight R-1234ze(E) overlaps and/or encompass the claimed ranges/amount of 1,3,3,3-tetrafluoropropene. The preferred disclosed range of R-744 of Low (Id.) encompasses the claimed range/amount of carbon dioxide especially in view of the “about” modifier recited in the reference; a lower boundary of about 4% by weight as in the reference approaches, if not touches, encompasses, or overlaps, the claimed 1-3 wt% and 2 wt% values. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976) & In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). See also MPEP 2144.05.
Claim 23 recites a latent property of the claimed refrigerant composition (that the composition has a property approximating a mixture of 68.9 wt.% difluoromethane/R-32 and 31.1 wt% 2,3,3,3-tetrafluoropropene/R-1234yf). The Examiner notes that, while the disclosure/comparative showing in the specification compares the claimed refrigerant composition to R-454B (i.e., 68.9/31.1 R-32/R-1234yf) to demonstrate its similar properties and capability of replacing R-454B, the disclosure/comparative showing also compares the claimed refrigerant mixture to R-410A (i.e., 50/50 R-32/R-125), as well. In some instances within the showing, the claimed refrigerant behaves more similarly to R-410A than R-454B. Note that Low teach the heat transfer/refrigerant composition is a R-410A replacement and has a theoretical energy efficiency close or higher than R-410A, with comparable cooling/heating capacities, operating pressures, and temperature glide to R-410A (Id., see also para. 0109+). See also Table 3 of the reference. A person of ordinary skill in the refrigerant art would expect the recited compositions to possess properties similar to those compositions disclosed and encompassed by the reference, absent a showing to the contrary.
Any remaining limitations among claims 21-23 are product-by-process limitations met by the structure taught by the prior art.
Response to Arguments
Applicant's arguments filed 11/22/2024 and 12/05/2024 have been fully considered but they are not persuasive. Note that Applicant’s remarks/arguments to Claim Interpretation and the rejection(s) of record are solely in the response filed 11/22/2024.
Applicant argues the Low reference fails to infer the claimed ranges of refrigerant components (p.10-12 remarks filed 11/22/2024).
This argument is first not persuasive for the reasons of record on pages 9, 13, and 14 of the Final Office action mailed 01/05/2024 and on pages 16-17 of the Non-Final Office action mailed 08/23/2024, for example:
Low teaches all the ingredients recited by Applicant in the same or nearly the same amount/range are suitable for inclusion in a heat transfer/refrigerant composition suitable to replace existing refrigerants such as R-410A and R-22. The disclosed ranges of R-32, R-125, R-744, and R-1234ze(E) of Low (Id.) overlap and/or encompass the claimed ranges/amounts of difluoromethane, pentafluoroethane, CO2 and 1,3,3,3-tetrafluoropropene, respectively: About 30-80% by weight R-32 (abstract) and about 45 to about 80% by weight R-32 (para. 0023) each overlaps and/or encompass the claimed ranges/amount of difluoromethane; up to 20% R-125, in other words, 0-20 wt.% R-125, (para. 0037) overlaps and/or encompass the claimed ranges/amount of pentafluoroethane; up to 30% by weight R-744, in other words, 0-30 wt.% R-744, (abstract) overlaps and/or encompass the claimed ranges/amount of CO2; and about 8 to about 51% by weight R-1234ze(E) (para. 0023) overlaps and/or encompass the claimed ranges/amount of 1,3,3,3-tetrafluoropropene. The preferred disclosed ranges of R-744 of Low (about 4 to about 12% by weight, para. 0023) encompass the claimed range/amount of carbon dioxide especially in view of the “about” modifier recited in the reference; a lower boundary of about 4% by weight as in the reference approaches, if not touches, encompasses, or overlaps, the claimed 1-3 wt% and 2 wt% values; the proportions of CO2 (R-744) in Low are so close to the claimed amounts of CO2 that prima facie one skilled in the art would have expected them to have the same properties, and in any event the broad proportion/range of CO2 (R-744) in Low (up to 30% by weight R-744, in other words, 0-30 wt.% R-744 as set forth in the abstract) overlaps and/or encompass the claimed ranges/amount of CO2. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976) & In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). See also MPEP 2144.05.
Furthermore, preferred embodiments (i.e., Low’s preferred range of about 4-12 wt.% CO2, para. 0023) do not constitute a teaching away from a broader disclosure or nonpreferred embodiments (i.e., Low’s broad range of 0-30 wt.% CO2, abstract). See MPEP 2123.
Applicant further argues Allgood et al. fail to teach or suggest how the low level of impurities (water and oil) of the present disclosure are to be obtained.
In response, this argument is not persuasive because Allgood et al. directly teach high purity can be obtained by a variety of ways including distillation, decantation, molecular sieves, vapor space purging and combinations thereof (para. 0181-0185); molecular sieves are disclosed as particularly useful for water removal and distillation and decantation are disclosed as effective for removal of organic impurities (para. 0181). However, note that this argument is generally not persuasive because Applicant is arguing process limitations while the claims are drawn to products/compositions. See MPEP 2113.
Applicant further argues the specificity of the transitional phrases of independent claims 1 and 3 distinguishes over the applied art references of record.
In response, this argument is not persuasive for the reasons of record as thoroughly discussed in the rejections of record above using the claim interpretation of record as thoroughly set forth in the Claim Interpretation section above.
While independent claim 1 indeed recites “consisting of” as its transitional phrase, the claim is limited to a refrigerant composition consisting of 72-74 wt% difluoromethane, 7-8 wt% pentafluoroethane, 1-3 wt.% CO2, 17-19 wt.% 1,3,3,3-tetrafluoropropene, oil(s) in a range of at least 1.53-1.67 x 10-11 wt.% oils as a minimum to an ordinary impurity amount as a maximum, and water in a range of at least 1.41-1.54 x 10-27 wt.% water as a minimum to an ordinary impurity amount as a maximum (see Claim Interpretation section, especially pages 6 to 9, of this correspondence, above), which the references of record indeed teach and meet (see the 103 rejection on pages 12 to 18 of this correspondence, above).
While independent claim 3 indeed recites “consisting essentially of” as its transitional phrase, the claim is not as restrictive as asserted by Applicant. The transitional phrase “consisting essentially of” limits the scope of a claim to the specified materials or steps "and those that do not materially affect the basic and novel characteristic(s)” of the claimed invention. See MPEP 2111.03, III. This transitional phrase is very broad and synonymous with “comprising” (which is inclusive or open-ended and does not exclude additional, unrecited elements or method steps).
Note that there is no definition or discussion in the original specification of what would materially affect the basic and novel characteristics of the claimed refrigerant composition invention. The claim merely requires a refrigerant composition comprising 72-74 wt% difluoromethane, 7-8 wt% pentafluoroethane, 1-3 wt.% CO2, 17-19 wt.% 1,3,3,3-tetrafluoropropene, at least about 1.53-1.67 x 10-11 wt.% oils as an open-ended range with no particular maximum concentration so long as the composition sums to 100wt.%, and at least about 1.41-1.54 x 10-27 wt.% water as an open-ended range with no particular maximum concentration so long as the composition sums to 100wt.%.
(see Claim Interpretation section, especially pages 9 to 11, of this correspondence, above), which the references of record indeed teach and meet (see the 103 rejection on pages 22 to 26 of this correspondence, above).
Applicant further argues Low fails to teach a replacement for R-454B (p.12-13 of remarks filed 11/22/2024). However, as previously addressed in the most recent Non-Final Office action, this argument is not persuasive because this is merely an intended use of the claimed invention and Low nevertheless teaches a refrigerant substantially overlapping the structural chemical composition to that claimed.
Applicant further argues the distillation process that obtains the formulations of the disclosure has an unexpected result of leaving an extremely low amount of oil and water in the reclaimed refrigerant, and this distillation is not taught or suggested in the prior art references (p.13-15 of remarks filed 11/22/2024).
In response and as previously addressed in the most recent Non-Final Office action, this argument is not persuasive because a distillation process is not claimed. The features upon which applicant relies are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Not only is a distillation process not claimed, but a method comprising a distillation process was non-elected by Applicant (see the response filed 05/17/2023). The elected, claimed invention is to a refrigerant composition. The limitations to the difluoromethane/pentafluoroethane/oils/water being a “distilled fraction” is a product-by-process limitation because the distilled fraction is an intermediate composition while the entire refrigerant composition is a final composition. While each independent claim has a slightly different interpretation (see above), the instant claims are not limited to the particular oil/water concentrations of the intermediate distilled fraction(s) because the remaining components (CO2 and/or 1,3,3,3-tetrafluoropropene, and any unrecited elements in the more broad claims that permit them) may broadly further contain additional oil and/or water via the recited “comprising” language of the claims that permits the inclusion of additional oil+water in the entire, final refrigerant composition above the recited concentration values. The instant claims are also not limited to requiring the refrigerant composition be made by any particular process (such as distillation to obtain a “distilled fraction”). See also the detailed discussion of this limitation in the Claim Interpretation section, above.
Similar to the arguments already addressed in the Final Office action mailed 01/05/2024 and in the Non-Final Office action mailed 08/23/2024, Applicant further argues Low teaches nothing about the advantages of recycled material and lowered net GWP by no additional fluorocarbons being created (p.13 of remarks filed 11/22/2024). Applicant further argues the claimed reclaimed/recycled refrigerant components accelerate the US EPA's goal of decreasing consumption of virgin hydrofluorocarbon (HFC) refrigerants from 2022 to 2040 and provides unexpected economic advantages of lowering GWP by reusing waste refrigerant, limiting importation of dumped refrigerants, and offering a R-454B replacement at a very low cost (p.14-15 of remarks filed 11/22/2024).
In response, these arguments are not persuasive firstly because it is reemphasized that the claimed and elected invention is drawn to a composition of matter while most, if not all, of Applicant’s considerations under the allegations of unexpected results are primarily focused to process/method limitations of a non-elected invention.
The arguments are also not persuasive for the reasons of record on pages 15 to 18 of the Final Office action mailed 01/05/2024 that the declaration of record and arguments are not persuasive to overcome the rejection(s) of record because the alleged advantages of the claimed invention do not rise to a level evidencing unexpected results and/or commercial success. For example:
Several evidentiary prior art references are cited and discussed above in the Claim Interpretation section regarding the well-known concept of recycling refrigerant fluids:
Packo (US 5,050,388 A) teach the recycling of refrigerant fluids is a known initiative to improve the environment and recycling and reclamation of refrigerants is important from an economic point of view as well as an environmental point of view
(col. 1 lines 10-12 and col. 2 lines 6-17).
SDS for both R-32 (R-32 SDS, 2021) and R-125 (Forane© 125 SDS, 2015) indicate the refrigerants (difluoromethane and pentafluoroethane, respectively) should be recovered/reclaimed and/or recycled and should not be vented/discharged to the atmosphere. See § 13 of both SDS.
40 CFR 82 Subpart F to Recycling and Emissions Reduction (as in effect on 01/01/2020) is drawn to laws/regulations concerning recycling and emissions reduction as well as standards for recycling and reclaiming refrigerants. 40 CFR 82.164(a)(1) (p. 28 of the supplied copy) requires reclaimed refrigerant for (re)sale to adhere to specifications set forth in appendix A of the subpart. Reclaim is defined as to reprocess recovered refrigerant to all the specification in appendix A of the subpart (p. 4 of the supplied copy), which is another way of saying recycling a refrigerant for further, continued use. Appendix A begins on p. 33 of the supplied copy. The scope of Appendix A explicitly includes setting forth standards and specifications for reclaimed/recycled R-32 and R-125 (p. 33). The standards/specifications for reclaimed R-32 are in Table 1A on p. 38. The standards/specifications for reclaimed R-125 are in a continuation of Table 1A on p. 40. The Purpose and Scope Sections (sections 1 & 2) of Appendix A specifically indicates the purpose of these standards/specification are “to evaluate and accept/reject refrigerants regardless of source (i.e., new, reclaimed and/or repackaged) for use in new and existing refrigeration and air-conditioning products” (p. 33).
Allgood et al. (US 2021/0122962 A1) teach a process of reducing the global warming potential (GWP) of a refrigerant blend by effectively recycling one or more hydrofluorocarbon compounds, e.g., difluoromethane and/or pentafluoroethane, to produce a refrigerant blend having a reduced GWP compared to a refrigerant blend not having the purified/recycled hydrofluorocarbon compound(s) (para. 0004-0014). Allgood et al. elaborate and teach the concept and meaning of an “effective GWP” as referring to the GWP of a refrigerant mixture of blend containing hydrofluorocarbon(s) having been reclaimed, recycled, and/or purified to significantly reduce the effective GWP of the mixture relative to the GWP of a refrigerant mixture or blend that contains only newly manufactured, “virgin” components (para. 0017-0018).
These references, singly or in their totality, serve as objective evidence there is nothing unexpected about recycling refrigerant components as they each direct the skilled artisan to recycle refrigerants for various advantageous reasons commensurate with those alleged by Applicant (environmental, economic, etc.).
The Office further notes 40 CFR 82 Subpart F is drawn to laws/regulations concerning recycling and emissions reduction as well as standards for recycling and reclaiming refrigerants and requires the purity standard/specifications for newly manufactured, reclaimed/recycled, and repackaged refrigerants be the same, whether recycled or not. Complying with codified laws and regulations does not constitute unexpected results or commercial success.
Additionally, Allgood et al.’s concept of “effective GWP” by recycling difluoromethane and/or pentafluoroethane is equivalent to the present invention’s concept of “net GWP”, which is additional evidence the claimed recycling/net GWP does not constitute unexpected results or commercial success. “If commercial success is due to an element in the prior art, no nexus exists.” Tokai Corp. v. Easton Enters., Inc., 632 F.3d 1358, 1369 (Fed. Cir. 2011). “[I]f the feature that creates the commercial success was known in the prior art, the success is not pertinent.” Ormco Corp. v. Align Tech., Inc., 463 F.3d 1299, 1312 (2006).
The Office further notes both Allgood et al. and AHRI Standard 700-2017 are both drawn to and teach typical purification standards for refrigerant components in the art. AHRI Standard 700-2017 even teach and establish industry-wide purity specifications for acceptability of refrigerants therein regardless of source (new, reclaimed and/or repackaged) for use in new and existing refrigeration and air-conditioning products (section 1). Following industry-wide purity specifications/standards does not constitute unexpected results or commercial success.
Accordingly, the rejections are maintained for the reasons of record.
The remaining references listed on Forms 892 and 1449 have been reviewed by the examiner and are considered to be cumulative to or less material than the prior art references relied upon or described above.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATTHEW R DIAZ whose telephone number is 571-270-0324. The examiner can normally be reached Monday-Friday 9:00a-5:00p EST.
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/MATTHEW R DIAZ/Primary Examiner, Art Unit 1761
/M.R.D./
February 3, 2024
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